ACCC’s jurisdiction to arbitrate disputes backed in court

The Federal Court has handed down its decision on a judicial review application commenced by Telstra on 3 January 2014 against the Australian Competition and Consumer Commission and three access seekers.

Telstra sought review of the ACCC’s jurisdiction to arbitrate three disputes that were notified by Vocus Fibre Pty Ltd, Adam Internet Pty Ltd and Chime Communications Pty Ltd.

The disputes were notified to the ACCC under the Telecommunications Act 1997 and concern Telstra’s proposed variations to charges for access to facilities, including space for equipment in Telstra’s telephone exchanges, pursuant to agreements with the access seekers which allowed Telstra to notify variations to charges. The access seekers did not agree to the varied charges notified by Telstra.

The issue before the court was whether there was a “dispute” which could be arbitrated by the ACCC in these circumstances.

Justice Flick rejected Telstra’s argument that there was no failure to agree between Telstra and each of the access seekers, and accordingly found that there was a dispute which could be arbitrated by the ACCC.

ACCC Chairman Rod Sims said “The ACCC welcomes this clarification of its jurisdiction to arbitrate access disputes notified to it”.

The arbitration of these disputes will now proceed. As the arbitrations are conducted in private, the ACCC will not be making any further public comment.